Surrogate's Court
or "The Will is Nice Monty, but I'll Take the Probate File Behind Drawer #2!!"

Here is another lesson to help you find that long lost ggggrandpa! This applies to Genesee County, but
generally, also can be applied if you are looking in Orleans, Wyoming, and Livingston Counties. I thought I would
clear up some questions about the Wills and Probate files.
Part of an Abstractors job is to check Surrogate's Court to see if the property owners are both alive.
Sometimes property is conveyed by will, or by an executor, so Abstractors always check Surrogate's Court when
doing a property search. You will be using the old red General Indexes in Genesee County.

(Before we get started let me say, if you do not find a will on the Sampublco website, it does not mean that
there is not a probate file for your ancestor. It just means there is no will filed.) If the deceased did not own any
property or anything of value, then you will not find a will or Probate File. You may not always find one when someone
dies, so don't assume they didn't die in the county just because you did not find anything in Surrogate's Court. If
ggggrandpa Seth Jones never owned his own house, or had no large cash holdings, crops, livestock, etc., there is really
no reason for him to write a will.

Or, if he is just leaving his watch to his son, his bed set to his daughter in his will, the family may not have even
bothered to file it. The purpose of Surrogate's Court is to make sure a person, who has an estate considered of some
value, has his possessions divided, as it should be. When it comes to families, they often do what they want, and not
necessarily what they should. Will or no will, always check for a Probate file, and read every bit! So to clarify all these
technical in's and out's, this is called:

"The Will is Nice Monty, but I'll take the Probate File Behind Drawer #2!"

After you find your persons name in the index book you will see two sets of numbers. One is the file drawer for
the probate file. The other set is the book and page of the General Register which lists all the steps taken, and which
books you can find them. This is time consuming and you will miss a lot of good information. Go straight for the probate
file. If you do not find the will in the file, THEN check the Will Books. Sometimes the index for the Will Books are in
the back of the book not the front.
An "Executor" or "Executrix" if female, is the person named in a will that is chosen to handle the estate upon
death. If a person dies with a will or "Testate" the Executor named in the will petitions the court for "Letters of
Testamentary" and permission to enter the will for probate. These letters are issued by the court putting the executor in
charge to make sure all the steps are followed through with until the estate is settled. He/she will need this letter to
show banks to release the funds, get into security boxes at banks, and have authority to write checks to pay any debts,
etc. The will contains of course the deceased's desires as to how he wishes his property to be divided among his heirs,
which he names in his will. What is stated in the will is not always what happens however. We will get to this in a
minute.

If a person dies without a will or "Interstate", then someone needs to petition the court to become the
"Administrator" of the estate. After the Court appoints the Administrator, he/she is issued "Letters of Administration".
The Administrator's duties are the same as that of the Executor's. So this is why you may still find a probate file even
though gggrandpa Seth Jones never got around to writing a will. This sometimes makes for a messy affair for the poor
remaining relatives.

Most Wills begin the same. Our Seth was smart and wrote a will. Seth Jones, of course being of sound mind,
requests that all his just debts be paid. Seth also will state that all his funeral expenses be paid. He then will list his
wishes as far as his property and personal possessions. Usually of course his wife, Mary Jones for example, receives
the property, and living expenses until her death. In the olden' days it was often stipulated, the phrase "or until my wife
remarries". After this he begins to list the rest of his heirs. His son Harry Jones, son James Jones, daughter Sally Jones,
and daughter Eliza Smith, and what he wishes them to receive. Daughter Susan has been disowned and left out of his
Will for marrying Joseph Black. The executor could be his wife, his son/daughter, his lawyer, or even just a best friend.
In this case we will use his daughter Eliza's husband Jacob.

Now years go by and poor Seth dies. Jacob Smith files for Letters of Testamentary, which are granted.
Now the family fun begins!! Let's say Seth had a lot of money, land, crops etc. When he wrote his will, Sally was a
minor. Now she is married to William Brown living somewhere in Ohio. The executor now has to find all of Seth's
"devisees" or "distributees". If you think, "Well he named them all in his will, who's to find?" The answer is anyone
who has a stake in Seth's estate. This would be Harry and James and any of their children, Eliza and any children she
has with Jacob Smith. Sally and her children with William Brown, including their one son whose whereabouts is
unknown. Sometimes even nieces and nephews need to be tracked down. Even if Seth disowned Susan for marrying
Mr. Black, she, and her children, are still entitled to a share of the estate. Any minor children will be appointed a
guardian by the court to speak for their interests.

Sometimes it takes quite a while to find all these people, especially if there whereabouts are not known. This
can delay things for months. When they are found, they have to sign waivers stating they have no objections to the will
being entered into probate. If someone has a beef, here is where it usually happens. Someone contests the Will and
refuses to sign the waiver. Let's say in this case all the waivers are signed. Read all of them. It will mention in the
notary section if the devisee' signed out of State.
You may want to read any bills in the probate file. Sometimes it mentions who made the tombstone. This
may be a clue to a nearby cemetery you haven't checked, if you can't find where poor Seth is buried. Usually there
are little notes in the file. Read these too. Let's say Susan writes a letter to the court about another child that was
born after the probate process began. This new baby is also entitled to its share. Usually a large estate is kept in
trust. Sometimes it can take 10, 20, 30 years or more till the estate is finally settled. Read every paper in the file.

If it is a case where it lasts for years, you will find many interesting things. Every so often they will have to get
new information from the devises, so they can issue any checks. You will find many children this way, migration
patterns of Seth's children or their children, second wives and husbands, extended family, etc.

Also read the inventory lists and the appraisers report. This was how I found out who took off with all the
furniture and family photos for one family! In this case let's say that Sally and William Brown came back from Ohio
to hear the will read. While they were there they took the very expensive china set, the sterling silver, the family
photos, and the bible from their parents home. The appraiser obviously did not find these items when he went to
look for them during the appraisal. He might note for example, as in my case, that Sally Brown removed these items
to her home in Ohio. Now you know to track down the descendants of Sally and William Brown to see if any old
family photos of Seth and Mary Jones still exist. Eventually the estate will finally be settled. Usually after Seth's wife
Mary finally dies.
Wills and probate files are also important because sometimes deeds are not done the right way. This is
covered in more detail in my section on deeds at my web site. What if Seth left his property to his son James? The
right thing to do is for the Executor to do an "Executor's Deed" that transfers the property from Seth's estate to the
son James Jones. Sometimes this is not always done. Seth's descendants could be living in the same house long after
you think, or you may think they are lost, because you can't find a deed after Seth has died. This will make for a
messy property issue for the son of James if he were left the property next. In other words, use the 50-year
searching rule of thumb when searching for probate files as well as deeds. An Executors deed may be filed long after
Seth has died just to clear the title to the property. Search 50 years forward for a probate file if you don't find one at
the time of death.

So that is why I say the will is nice, and does contain useful information, but it is usually written years before
the person dies. Since this is genealogy, the probate file is the item to go for; and nine times out of ten it has a copy
of the will in it anyway. You should still check the will index if you do not find a Will in the probate file. Often in the
very, very, old cases the wills were only in the will books and not transcribed to put in the probate file.
Finally, if an Executor's Deed was never filed and you think one should have been, you may find the will filed in the
County Clerk's Office. This would be done to clarify who was "willed" the property. To look for this possibility,
check the Deed Indexes.
Any issues on children should be looked for in the probate file, the General Index in Surrogate's Court for
possible Guardianship Files, and Miscellaneous Records in the County Clerk's Office. (I found quite a few 1800s
adoptions there after a death of a parent!)

Other records you will find in Surrogates Court are:
Dowers Indexes Which should list exactly what the wife gets. This was done if there was a very large
estate.
Land Sales, Record of Sales Details of the land sold to settle the estate.
Minutes of Citations Record of citations that were issued to the next of kin to appear for
the reading of the will.
These are all in the back corner of the room where the other books you are looking at are.

For guardianship records see "Finding Lost Children"